Inquest

What is an inquest?

An inquest is a public hearing. It involves a detailed inquiry into a death, fire or explosion with evidence being tendered in court. The aim of an inquest is to put as much information before the coroner as possible, so that they can make the most accurate findings possible. Instead of aiming to punish (such as a criminal court does) the coroner seeks to establish the facts of the matter and prevent similar deaths. Inquests are conducted in public, so that anyone who wishes to view the proceedings can attend. The legislative framework for the conduct of an inquest can be found in Part 7 of the Act and in Part 4 of the Rules.

Most coronial investigations do not involve an inquest. The facts that the coroner seeks are usually able to be found through investigation only, and the mandatory inquest provisions of the Act are not triggered. In the approximately three per cent of cases where an inquest is mandatory, or deemed desirable, the coroner takes an active role in directing the coronial staff, ensuring that the evidence they require will be presented at the inquest.

When is an inquest held into a death?

A coroner will hold an inquest into a death in two situations. The first is where the mandatory inquest provisions of the Act are triggered (s 24(1)); the second is when the coroner considers it desirable to do so (s 24(2)).

1. Mandatory inquest provisions (s 24(1))

A coroner who has jurisdiction to investigate a death must hold an inquest if:

The deceased person is in Tasmania, or connected to Tasmania:

  • the body is in Tasmania; or
  • it appears to the coroner that the death, or the cause of death, occurred in Tasmania; or
  • the deceased ordinarily resided in Tasmania at the time of death

AND one of the following applies:

  1. the coroner suspects homicide; or
  2. the deceased was immediately before death a person held in care or a person held in custody; or
  3. the identity of the deceased is not known; or
  4. the deceased died whilst escaping or attempting to escape from prison, a detention centre, a secure mental health unit, police custody or the custody of a person who had custody under an order of a court for the purposes of taking that person to or from a court; or
  5. the death occurred in the process of a police officer, correctional officer, mental health officer or prescribed person, within the meaning of section 31 of the Criminal Justice (Mental Impairment) Act 1999, attempting to detain a person; or
  6. the deceased died at, or as a result of an accident or injury that occurred at, his or her place of work and the coroner is not satisfied that the death was due to natural causes;* or
  7. the death occurred in such a place or in such circumstances that require an inquest under any other Act; or
  8. the Attorney-General directs; or
  9. the Chief Magistrate directs.

*if the coroner decides to hold an inquest into a workplace death (s 24(1)(ea)), as soon as practicable after making the decision, they must notify the senior next of kin of the deceased person, in writing, of the decision, including the reasons for the decision (s 26A). The senior next of kin may then request that the coroner not hold the inquest.

For more information on the meaning of ‘person held in care’, ‘person held in custody’ and other relevant definitions, please refer to section 3 of the Act and About.

In some cases, a person dies in circumstances which trigger the mandatory inquest provisions, but the coroner is satisfied that an inquest with oral evidence is not required. An example of a situation where this may occur is when a person dies in custody as a result of the natural progression of a terminal illness and an autopsy confirms this as the cause of death. In these cases, the coroner may hold an ‘inquest on the papers’, which involves the relevant documentation being tendered in court but no witnesses being called.

The mandatory inquest provisions require the coroner to hold an inquest into any death relating to a person held in the custody or care of the State. This includes people who are being held in a prison, detention centre or a secure mental health unit. The State has a special duty of care to all people who are in its custody or care. This responsibility results in a duty to thoroughly investigate all deaths of people in State custody or care and to ensure that others in the same situation are protected and adequately cared for. The requirement for those in public office to publically explain deaths in care and custody is essential to government transparency and accountability.

2. When the coroner considers it desirable to hold an inquest (s 24(2))

Section 24 (2) of the Act states that a coroner may hold an inquest into a death, which the coroner has jurisdiction to investigate, if the coroner considers it desirable to do so. Section 24A also gives the Chief Magistrate the same power to hold an inquest personally. Although the Act gives no specific guidance, there are some factors that the coroner may take into account when deciding if it is desirable to hold an inquest:

  • whether the coroner can gather all the information they require to make their section 28 findings from an investigation alone
  • whether there is a high level of publicity and public concern surrounding the death
  • whether there are suspicious or concerning circumstances
  • whether there are potential ongoing dangers to public health and safety indicated by the death
  • whether there is a public interest in the death (and surrounding circumstances) being explored in an open, public forum
  • whether the procedures only available at inquest (and not during investigation, such as compelling witnesses to give oral evidence) will provide important additional information
  • whether the administration of justice requires it
  • whether there is conflicting evidence in the investigation (such as eyewitness accounts)
  • whether the potential benefits of an inquest outweigh the difficulties to the parties and the court: emotional, financial and otherwise
  • in the case of a matter also dealt with in the criminal jurisdiction:
    • whether all the relevant public interest issues have been dealt with in the criminal jurisdiction
    • whether there is significant relevant evidence which would be admissible in coronial proceedings (but was not admissible in the criminal proceedings).

If a coroner has jurisdiction to hold an inquest into a death and makes a decision not to do so (or if the Chief Magistrate decides not to make a direction in the same circumstances), the coroner or Chief Magistrate must (s 26):

  • record the decision in writing, specifying the reasons for that decision; and
  • notify the senior next of kin in writing of that decision and the reasons for it, as soon as possible.

Within 14 days of receiving this notice, the senior next of kin may apply to the Supreme Court for an order that an inquest be held.

When is an inquest held into a fire or explosion?

A coroner will hold an inquest into a fire or explosion in two situations. The first is if the Attorney-General or the Chief Magistrate directs that an inquest be held (s 43(1)); the second is if the coroner considers it desirable to do so (s 43(2)). In deciding whether it is desirable to hold an inquest, similar considerations apply as to an inquest regarding a death (refer to the previous section).

If a coroner who has jurisdiction to hold an inquest into a fire or an explosion makes a decision not to hold an inquest after being requested to do so by a person, the coroner must (s 44):

  • record the decision in writing, specifying the reasons for that decision; and
  • notify the person who made the request in writing of that decision and the reasons for it, as soon as possible.

Within 14 days of receiving this notice, the person may apply to the Supreme Court for an order that an inquest be held.

How is an inquest held? (Act Part 7 and Rules Part 4)

Inquests are conducted in an open court (s 56(1)), with a single coroner presiding. During the inquest, a coroner may be assisted by a ‘counsel assisting’ who will ask questions, tender documents and liaise with families on the coroner’s behalf. An interested person / organisation may appear or be represented at the inquest. The coroner may make any statements or affidavits they intend to consider available to interested persons. Interested persons have the right to call and examine or cross-examine witnesses and to make submissions (s 52).

An inquest begins with an opening statement by the coroner. The counsel assisting or coroners’ associate may also make an opening statement summarising the investigation. Most of the documentary evidence will be tendered and admitted into evidence by the coroner at this stage. After this, witnesses are called one by one and they give their evidence. The witnesses are usually given the statement they made to police and then asked questions about it by the counsel assisting (on behalf of the coroner), as well as by any legal practitioners or interested persons. The coroner may also ask questions and will check with unrepresented families and friends if there is anything they would like to ask or anything they would like explained. During the question-and-answer process, documents and physical evidence are tendered by the counsel assisting / coroner’s associate and by parties.

During an inquest, any person with a 'sufficient interest' in a death (usually a person who is a family member of the deceased but who is not the senior next of kin) may themselves, or through a legal representative, give evidence and make submissions at the inquest, as well as calling, examining, and cross-examining witnesses - s 52(4)

Unlike a judge in a criminal trial, the coroner may be informed and conduct an inquest in any manner they reasonably think fit (s 51). The coroner decides which evidence will be admitted, which witnesses will be called, who will be permitted to ask questions and how the matter will proceed. Of most importance, the coroner decides which issues are most relevant to the proceedings. The issues to be explored define the scope of the inquest.

Inquests are run in a very different way to criminal trials; some of the most important differences are:

  • in an inquest, the rules of evidence do not apply (s 51) - this means that a coroner has more flexibility as to the types of evidence they can consider than other judicial officers
  • the application of the common law is limited in an inquest, particularly as to procedure (s 4)
  • coroners apply the rules of natural justice so they make use of principles of procedural fairness such as the rule against bias, acting only on logically probative evidence and the right to be informed of, and given the opportunity to answer, any evidence that may invite adverse findings against you
  • relevance remains the primary consideration (to the issues which define the scope of the inquest)
  • an inquest can be held into any number or combination of deaths, fires and explosions (s 50)
  • a statement or disclosure made by any witness in the course of giving evidence before a coroner at an inquest is not admissible in evidence against that witness in any civil or criminal proceeding in any court (other than a prosecution for perjury) in the giving of that evidence (s 54).

Once all witnesses have been heard, the counsel assisting, legal practitioners and / or interested persons will make their closing submissions. Closing submissions are a statement about the inquest, and may include facts that the coroner might find, recommendations the coroner might make, legal issues that require consideration and any other matter relevant to the interests of the person making the submission. Once the closing submissions are complete, the coroner will adjourn the proceedings so that they can consider the evidence thoroughly and make written findings.

The inquest process may take a few hours or many months depending on how many witnesses the coroner requires evidence from, how ready the parties are for the inquest and how much evidence has to be tendered. A very long and complex inquest often involves a delay for parties to make submissions, and again for the coroner to hand down their findings. The time frame will depend on the extent of the evidence and on the coroner’s workload.

Inquests are very important to the families and friends of deceased persons for a number of reasons:

  • families and friends can better understand that their views are heard and respected
  • families and friends can better understand the large amount of time and effort that has gone into investigating the matter
  • the inquest process can allow families and friends a greater understanding of what happened
  • where an apology or acknowledgement of harm is offered by a person who contributed to the death, this can assist with the grieving process
  • procedures and practices which contributed to the death may be revised and changed to prevent similar deaths
  • any systemic problems are exposed
  • outcomes such as public education, procedural change, media coverage, referral to the Attorney-General and the exposing of facts and circumstances leading to death may all be viewed as positive by friends and families.

Causation, scope and relevance

In coronial investigations, causation, scope and relevance are distinct yet highly related legal principles. The primary objective of an investigation is to determine the cause and manner of death, so where does one find the end of a finite chain of causation? The scope of an inquest is determined by the issues, but how are those issues selected? Whether evidence will be admitted by a coroner depends on whether it is relevant to the issues. The rules of evidence do not apply (s 51), so how is relevance ascertained? Causation assists to define scope and scope determines relevance.

Causation

The requirement to find the identity of any person who contributed to the cause of a death was abolished in April 2015 with the repeal of section 28(1)(f) of the Act.  Being a procedural provision, the repeal of the former section 28(1)(f) operates prospectively from the date of the repeal; therefore  the  provision does not apply to findings made after that date even if the death occurred before that date (section 16 of the Acts Interpretation Act 1931; State of Tasmania v Thorpe [2011] TASSC 18).

It is nevertheless the fundamental function of the coroner to ascertain ‘how death occurred’ (s 28(1)(b)).  Such an inquiry will involve scrutiny of the particular circumstances surrounding each death to ascertain the operative cause or causes of death. The relevant circumstances for examination in each case will differ depending upon the factual investigation.  Some investigations and inquests will involve only scrutiny of events temporally close to the occurrence of the death and in a limited sphere. Others will involve an analysis of causation for death, involving a wider compass and from a much earlier time before death.

The phrase ‘how death occurred’ involves the test of ordinary legal causation (R v Doogan; ex parte Lucas - Smith and Ors (2006) 158 ACTR 1 at [24]). The question of causation is determined by applying common sense to the facts as found, not resolved by philosophical or scientific theories (E & MH March v Stramare Pty Ltd (1991) 171 CLR 506; Campbell v The Queen (1981) WAR 286; Chief Commissioner of Police v Hallenstein [1996] 2 VR 1).

The question of how death occurred involves the ascertainment of sufficient causal connection with the death. As part of the coroner’s fact-finding role, this process will often require the coroner to identify any person whose actions were a cause or contributing cause of death. This is a factual determination identifying persons involved in the chain of circumstances leading to the death in question.  However, it is important to bear in mind that the question is concerned with actions of relevant persons that are causative of death, not with any determination of matters of legal or moral responsibility. Such a determination is a matter for the criminal courts or other bodies.  In R v Tennent; ex parte Jager [2000] TASSC 64, Cox CJ at paragraph 7 said that the coroner’s function is the ‘ascertainment of facts without deducing from those facts any determination of blame…’

However, sometimes the coroner is required to assess whether any individual’s actions were causative of death by considering ‘whether the act departed from a norm or standard or the omission was in breach of a recognised duty’ (Keown v Khan [1999] 1 VR 69). Some of the principles applicable to assessing causation in this regard are:

  • whether the actions of the person are a substantial contributing cause of death. The concept of “substantial” means an operative cause - not too remote, not merely part of the history of events, and more than de minimis (Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 per McHugh J at 442; R v Smith (1959) 2 QB 35)
  • the actions of the person need not be the direct or immediate cause of death and there can be more than one cause of death (Keown v Khan, (supra); Royall v The Queen (supra))
  • when the death is not caused directly by the actions of the person there may be a consideration of whether the chain of causation has been broken (Pagett [1983] EWCA Crim 1; (1983) 76 Cr App R 279)
  • ‘cause of death’ means the real cause of death (the disease, injury or complication) not the mode of dying (for example, heart failure, asphyxia or asthenia):  Ex parte Minister of Justice; Re Malcolm; Re Inglis [1965] NSWR 1598 at 1604.

Scope

The scope of an inquest may also be informed by causation. If it is plainly clear that a fact or circumstance did not cause or contribute to the death then the scope of the inquest will not extend to dealing with those issues.

However, the Act is not intended to limit the inquiries of coroners to matters of mere formality ‘but to require the finding of the coroner to be of social and statistical importance in a modern community’ (Ex parte Minister of Justice; Re Malcolm; Re Inglis [1965] NSWR 1598 at 1602). It has also been held that another purpose of an inquest is to satisfy ‘the legitimate concern of relatives’ (Bilbao v Farquhar [1974] 1 NSWLR 377 at 388).

Specifically under the Act, the scope of an inquest may encompass:

  • making recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate (s 28(2))
  • commenting on any matter connected with the death, including public health or safety, or the administration of justice (s 28(3))
  • reporting on the care, supervision or treatment of a person who died while being held in care or custody, or while escaping from custody (s 28(5)).

The relevant question to ask in most coronial investigations to determine scope therefore becomes, ‘was this matter connected with the death?’  In the case of the findings that the coroner must make under section 28(1), the answer is usually clear once the principles of causation are applied. However, the question of how far a coroner may inquire into matters (and consequently which issues are within scope) for the purpose of making comments or recommendations (s 28(2) & (3)) requires further analysis.

It is clear from the cases discussed above that the coroner is not confined either temporally or spatially in ascertaining connection to death but rather must ask with each potential issue ‘did this impact in a reasonably direct manner upon the particular death now under investigation?’

Relevance

The coroner will admit evidence which is relevant to the determination of the issues within the scope of the inquest. Evidence is always admitted at the coroner’s discretion. Section 51 of the Act states that ‘a coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit.’

When dealing with a near-identical provision (s 49(1)(a) of the Workers Rehabilitation and Compensation Act 1988 (Tas)) in Alison Jane Connelly v P and O Resorts Pty Ltd T/A Cradle Mountain Lodge [1996] TASSC 132 (7 November 1996), Wright J stated at [20]:

There is no restriction on the admission of evidence as is found in the Evidence Act. The coroner may admit hearsay, non-expert opinion evidence and other categories of evidence that are generally excluded in criminal proceedings.  In Connelly v P and O Resorts (supra) Wright J stated at [22]:  whilst sometimes cogent and reliable, hearsay is frequently of little, if any, weight, but that is not the determinative factor. So long as the material relied upon satisfies the test of being evidence rather than a mere supposition, guess or intuitive hypothesis, it may be received…’.

A coroner’s powers at inquest

Coroners have specific powers they can use during an inquest (s 53). If a coroner reasonably believes it is necessary for the purposes of an inquest, the coroner may:

  • summons a person to give evidence or provide any document or other materials (for service and related provisions refer to rule 17)
  • inspect, copy and keep any thing so produced
  • order a witness to take an oath or affirmation
  • compel witnesses to answer questions
  • give any other directions or do any other things they think necessary
  • fine or imprison a person who disobeys a summons
  • issue a warrant for someone who disobeys a summons, and upon their arrest:
    • commit the person to prison until they can give their evidence
    • admit the person to bail
    • order the person to appear at the inquest
  • defer provision of information under the Right to Information Act 2009 for a specified period (s 53A)
  • exclude any or all persons from an inquest on certain grounds (s 56(2))
  • order a person who disobeys an exclusion order to be removed from the court (and imprisoned for not more than 24 hours if the coroner reasonably believes that the person will continue to disobey) (s 56(3))
  • order that a report of an inquest or a report of any part of the proceedings of, or any evidence given at, an inquest not be published (s 57(1)), if:
    1. it would be likely to prejudice the fair trial of a person; or
    2. it would be contrary to the administration of justice, national security or personal security; or
    3. it would involve the disclosure of details of sensitive personal matters including, if the senior next of kin of the deceased has so requested, the name of the deceased.

Suspension of an inquest

An inquest must be suspended, if:

  1. certain criminal charges are laid (s 25)
  2. the coroner forms the belief that an indictable offence has been committed (ss 30(3) & 47(4)).

The criminal charges specified in section 25(2) are:

  1. murder of the deceased; or
  2. manslaughter of the deceased; or
  3. infanticide of the deceased; or
  4. causing grievous bodily harm of the deceased; or
  5. causing the death of the deceased by dangerous driving; or
  6. an offence under section 32 (1) of the Traffic Act 1925 arising out of an accident that resulted in the death of the deceased; or
  7. arson in relation to the fire; or
  8. unlawfully causing the fire; or
  9. unlawfully causing the explosion.

In the case of an inquest suspended under section 25, after the conclusion of the criminal proceedings the coroner may resume the inquest if they are of the opinion there is sufficient cause. The coroner may decide not to resume the inquest and if they do so, they must inform the Attorney-General in writing. An inquest resumed under this section proceeds from the beginning as if it were a new matter, any findings made cannot be inconsistent with the decision of the criminal court. Suspension of an inquest is rare, any charges have usually already been laid prior to commencement of an inquest.

For further information on inquests and related criminal proceedings, refer to ss 25(3) – 25 (9). For a discussion around the formation of a coroner’s belief that an indictable offence has been committed, refer to Maksimovich v Walsh (1985) 4 NSWLR 318.

Evidence

The coroner’s court is generally inquisitorial in nature and the rules of evidence do not apply (s 51). Most evidence at inquest is tendered to the coroner through counsel assisting or the coroners’ associate. Parties may also tender evidence; however, the coroner decides which evidence will be admitted.

The type of evidence is also slightly different to that used in a criminal or civil court. As the coroner is not bound by the rules of evidence, they have greater discretion as to what types of evidence they will admit (i.e. coroners can admit hearsay and non-expert opinion evidence). This does not mean everything will be admitted. The scope of an inquest is defined by the issues, and the question of whether the evidence is relevant to those issues is paramount. The rules of natural justice apply, including all aspects of procedural fairness such as the right of parties to be informed of, and given the opportunity to answer, any evidence that may invite adverse findings against them (Annetts and Anor v McCann and Ors. (1990) 170 CLR 596).

Evidence can be oral (given by reading statements and answering questions in court) or written (in the form of a document) or even physical (such as an article of clothing). Most commonly, evidence is given orally by anyone who has relevant information to provide the coroner about the death, fire or explosion under investigation.

Oral evidence

Oral evidence is evidence that is spoken aloud in court. Any witness who gives oral evidence must take an oath or an affirmation, which is a promise to tell the truth. Oral evidence includes evidence given by witnesses in examination-in-chief, cross-examination and re-examination. It also includes a deposition or affidavit read to the court (r 3, definition of deposition and r 20). Most oral evidence is subject to a prior affidavit. The witness is given an affidavit containing the statement they made earlier in the investigation, and then asked to read it aloud to the court and answer questions about it. Sometimes a witness is not required to come to court and their affidavit will be read into evidence by the counsel assisting or coroners’ associate, or taken as read.

For more information on being a witness in the coroner’s court, please refer to Witnesses

Written evidence

Written evidence can be any document that is relevant to the proceedings; the majority of these documents are affidavits. The documents may include witness statements, the post mortem report, expert reports and any relevant regulations or codes of practice. There is no formal discovery process in coronial proceedings; distribution of documents is usually arranged on application. Any person with a ‘sufficient interest’ in a particular document can apply to access that document or to have a copy made for a fee. Please note that a person with a sufficient interest in one document is not the same as an ‘interested person’ for the purposes of section 52.

Most documents will be tendered from the coronial file to the court by the counsel assisting or coroner’s associate. Parties may also tender documents; however, it is the decision of the coroner which documents will be admitted. Unlike in criminal proceedings, witness statements, depositions and affidavits are often tendered without the maker being present in court (r 20).

Physical evidence

Physical evidence is any evidence that is not oral or written – “things” which the coroner may use to aid them in their fact-finding. More bulky items are collected by the police and held at a police station, with photographs of the items added to the investigation file. Examples of physical evidence include photographs, clothing and samples of fibres. Medical physical evidence such as blood samples are not tendered in court. Instead, expert reports are prepared by persons such as toxicologists, pathologists and treating specialists explaining the results of their examination of the samples.

For more information on how to provide information to the coroner, please refer to A Guide for Families and Friends: How can I give information to the coroner?.

Items seized by police

Police will retain items in a coronial investigation in two situations, the first is for safekeeping and the second is as exhibits / evidence. All items taken by police are held at the ‘police property store’ at the relevant police station (most commonly Hobart or Launceston).

Items taken for safekeeping, such as a deceased person’s wallet, keys, jewellery or watch, can be returned upon request as they are not held ‘in the custody of the coroner’. For the return of these items, please contact the coroner’s court and speak with an associate to arrange a time to collect the items.

Items seized by police as exhibits / evidence remain in the custody of the coroner until they make an order as to care and control, or until the findings are handed down, whichever occurs first. If a coroner does make a care and control order (s 60) the item can be returned, however it remains in the custody of the coroner and so it must not be altered or disposed of until the findings are handed down. For example, if an order is made returning a laptop, the laptop cannot be sold or any files deleted. Any item that the coroner reasonably believes to be relevant to the investigation can be seized by police under the authority of the coroner (s 59), including items such as motor vehicles or mobile phones.

At the conclusion of an investigation, the coroner will generally release property to the person from whom the item was seized, or the senior next of kin. If there is a dispute over ownership of an item then you may apply to the coroner for custody, care, control or disposition of the item under section 61 of the Act.

For more information on applications in the coroner’s court, refer to Key Elements in the Process: Applications.

Last updated: 16 July 2024